8.13 Receiving Bribe by Public Official

8.13 RECEIVING BRIBE BY PUBLIC OFFICIAL (18 U.S.C. § 201(b)(2))

The defendant is charged in [Count _______ of] the indictment with [soliciting] [receiving] [or] [agreeing to receive] a bribe in violation of Section 201(b)(2) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant was a public official;

Second, the defendant [solicited] [received] [agreed to receive] something of value, [specify the thing of value], in return for [being influenced in the performance of an official act] [being influenced to commit or allow a fraud on the United States] [being persuaded to do or not to do an act in violation of defendant’s official duty]; and

Third, the defendant acted corruptly, that is, intending to be influenced [in the performance of an official act] [to commit or allow a fraud on the United States] [to do or to omit to do an act in violation of the defendant’s official duty].

Comment

"Public official" is defined in 18 U.S.C. § 201(a)(1); § 201(b)(2) also applies to a person selected to be a public official. Seealso Comment to Instruction 8.12 (Bribery of Public Official). The plain language of 18 U.S.C. 201(b)(2)(B) requires only that the public official accept a thing of value in exchange for perpetrating a fraud; therefore the use of an official position is not an element of the offense under § 201(b)(2)(B). United States v. Leyva, 282 F.3d 623, 625-626 (9th Cir.2002).

Under § 201(b)(2)(B), a public official acts "corruptly" when he or she accepts or receives, or agrees to accept or receive a thing of value, in return for being influenced with the specific intent that, in exchange for the thing of value, some act would be influenced. Leyva, 282 F.3d at 626.

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., "with all of you agreeing as to what the public official intended to do in return for the bribe"). See Instruction 7.9 (Specific Issue Unanimity).